At first glance, Hiibel v. Sixth Judicial District Court of Nevada is a small, easy case. Indeed, it is so small and so easy that it never should have attracted the attention of the Supreme Court -- which heard oral arguments in the case last Monday.
The facts are these: Larry Dudley Hiibel was arrested on the side of a road in Humboldt County, Nev., beside a parked pickup truck. The deputy sheriff who found him, standing outside the truck, was responding to a report by a concerned citizen that a man in a similar vehicle had been hitting a woman. The officer approached Hiibel, who was traveling with his teenage daughter, told him that he was conducting an investigation and asked Hiibel to identify himself. A routine request, perhaps, but Hiibel refused to comply.
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Eventually, Hiibel insisted that he would prefer to be arrested than to give his name, and he challenged the deputy to handcuff him. (The incident was captured on videotape by a camera installed in the sheriff's car.) During the exchange, the sheriff observed other things that tended to confirm the battery report and that gave him grounds to believe that Hiibel had been drinking and driving, according to the briefs, which do not make clear whether he was in fact driving. After asking Hiibel his name 11 times, the deputy arrested him. That move was prudent, proper -- and it should have been entirely uncontroversial.
But life and law are messy, and small, easy cases have a way of raising large, difficult questions. The deputy did not arrest Hiibel merely for suspicion of battery or suspicion of driving under the influence of alcohol. He took Hiibel into custody for violating a Nevada law that requires people to provide identification when asked by an officer who has reasonable suspicion to believe that they have committed a crime. This law raises difficult constitutional questions that the Supreme Court has never squarely addressed.
By now, identification requirements are a familiar feature of our criminal law landscape: Drivers must carry identification or run the risk of criminal sanctions during potential encounters with police. But what about encounters with the cops when we aren't driving? Must we provide our names if asked? And if we refuse, is that a crime? Can the police hold such refusal against us when trying to develop probable cause for some other crime they suspect we may have committed? In most states, the law provides no easy answers.
A number of jurisdictions have enacted identification laws similar to the one under which Hiibel was convicted, and the state and lower federal courts have started to divide over their constitutionality. As it routinely does, the Supreme Court figured that it was time to resolve this question, and it chose Hiibel as the vehicle for doing so. This worries me because the facts of Hiibel may allow the court, if it upholds the earlier decision, to duck the most serious police abuses that identification laws threaten to unleash.
In Hiibel, the police detained a white man, and they seem to have had perfectly good grounds for doing so apart from, and in addition to, his refusal to give his name. But if the court puts its imprimatur on these laws, the police will inevitably enforce them in a broad range of cases, including those where they stop a black- or brown-skinned man and their grounds for suspicion consist primarily of the color of his skin. The risk of using Hiibel to decide this issue is that the case could allow the court to pretend that policing is not black and white, that all cops are good and that identification laws, unlike so many criminal statutes, will be applied even-handedly.
In reaching its decision (which is expected in June), the court will necessarily turn to the Fourth and Fifth amendments to the Constitution, which place limits on police investigatory authority. Those amendments require law enforcement officers to justify their use of some investigatory techniques and forbid them to employ some tactics. Defenders of Larry Hiibel argue that identification laws such as Nevada's dramatically and unnecessarily expand the power of police to intrude on our liberties -- indeed, that such laws authorize the police to arrest innocent people whose only transgression was to ask an officer to leave them alone.
Stripped of some of their technicalities, the arguments for striking down the Nevada law go like this: Under the Fourth Amendment, which protects against "unreasonable searches and seizures," the police have authority to seize a suspect by arresting him only when they have probable cause to believe that he has committed a crime. To be sure, the Supreme Court has recognized one important exception to this basic protection. In the 1968 case Terry v. Ohio, the court authorized the police to conduct temporary investigatory seizures, now known as "Terry stops," on the basis of reasonable suspicion, not the more stringent probable cause.
But the Terry power is supposed to be narrow. Unless an initial finding of reasonable suspicion ripens fairly promptly into probable cause, the police must allow suspects to exercise their right to be left alone. The Nevada identification law eviscerates Fourth Amendment protections because it authorizes arrests based on reasonable suspicion rather than probable cause whenever a suspect refuses to cooperate with the police by giving them his name. This kind of bootstrapping impermissibly expands the scope of police power to search and seize, and is a reason to rule against the police in Hiibel.
The argument for invalidating the Nevada law under the Fifth Amendment, which protects against self-incrimination, is even more straightforward. A person's identity sometimes will be incriminating information. To take only the most obvious case, people who are wanted in connection with crimes are going to incriminate themselves merely by telling the police their names. Thus, the cops may neither compel people to identify themselves, nor use their silence against them if, like Hiibel, they refuse.
These Fourth and Fifth Amendment objections are far from frivolous, but neither provides a wholly satisfactory way to protect against racist enforcement of identification laws or, for that matter, any other criminal laws. In their briefs and oral arguments, the parties in Hiibel have focused on whether identification laws impermissibly expand the scope of police investigatory authority. Being required to identify oneself looks pretty trivial when compared with the considerable powers the police already have and properly should have.
When performing a Terry stop, police have the authority to frisk suspects who pose a threat of violence, as well as to restrain those who are disinclined to stick around for the stop. Likewise, suspects can be compelled to turn over incriminating physical evidence, such as blood samples, and the police are allowed to ask arrestees their names when taking them into custody. So what's the big deal about allowing the police to ask for identification during the course of a Terry stop when the information may save police resources as well as police lives?
The big deal is not the scope of police investigatory authority, but rather how to constrain the police when they are exercising the authority that they properly are given. If identification laws become routine features of state penal codes, what criteria will police use when deciding to stop people and ask them their names? History suggests that the police will rely heavily, and sometimes exclusively, on race. The police will invade the privacy of people who are young, male and black (or, perhaps, these days, men who look Middle Eastern) and they will leave the rest of us alone. And, at least as construed by the current court, neither the Fourth nor the Fifth Amendment has much, if anything, to say about that.
Over the past few years, data on traffic violations collected by researchers in a number of states have supported what African American drivers already knew: Police officers are more likely to enforce the traffic code against black drivers than white ones. Consider the ways in which identification laws may extend and exacerbate the potential for racist policing. The identification requirement applies only to one subset of citizens, those whom the police reasonably suspect of having committed crimes. Who are these suspicious people going to be? The same people whom the police target when enforcing the traffic laws. By definition, at least at some times and in some places, minority drivers, for no reason other than physical appearance, will be found by police to give rise to a reasonable suspicion of crime.
My concern is that, if the court uses the Hiibel case to affirm the police's authority to demand ID from suspicious people, we'll end up with a system that amounts to national ID cards for minorities only.
Let's hope that the potential for racist enforcement is on the justices' minds as they decide Hiibel. Three years ago, in Atwater v. Lago Vista, a case in which the court said it was okay for police to take a driver into custody for violating a seat belt law, Justice Sandra Day O'Connor objected to the court's decision to uphold police authority to make full-blown arrests for minor traffic offenses. As she put it in her dissenting opinion, "Such unbounded discretion carries with it grave potential for abuse" because experience shows that the police often use minor traffic infractions as an excuse for stopping and harassing racial minorities. This time around, the court would do well to heed her warning.
Author's e-mail:amc6z@virginia.edu
Anne Coughlin teaches criminal law and criminal procedure at the University of Virginia School of Law.
